Misallocating payments and ignoring email to exploit Magistrates court costs

[outlawlgo]

What I suspect is North East Lincs council's flawed Council Tax software has incorrectly allocated monies relating to the current year's liability to a previous year's account (an account in dispute) putting the current year's Council Tax in arrears.

A reminder notice was sent dated 13 October 2014 (received 16th October) from which I could immediately see what had caused the Council's automated system to throw a wobbler.

Two transactions were made on the same day (the sum of the two equalled my instalment amount). I assumed because the council's system didn't recognise the payment as it did not match the exact sum of the instalment amount it automatically allocated £60 to a previous year's account and what remained came off the current liability. Consequently there was a shortfall of £60 on this year's Council Tax.

Emailed the council on 16th October explaining what was likely to be the error and asked that they reallocate payment to this year's account and if there was another reason for the anomaly that they explain.

There was no reply (other than confirming receipt of email) and it didn't appear as if they'd addressed the issue and re-allocated funds to the proper account.

On checking the balance of my Council Tax today, it has increased by £60 (the council's standard summons costs).

This must be happening in all or most local authorities, and must amount to organised crime aided and abetted by Council Tax software developers.

I have not yet received a summons but no doubt it will be in the post.

EDIT:

Adding court costs in advance must be unlawful in itself?

[MrSandman]

Paying off court costs is just too much complicated and it makes me angry. What should I do, if the bill comes to me at the time I'm away from the U.S? I think, the courts should use some modern payment systems instead of what they have right now. For example, when I'm in Europe, I use Fondy, because out of the U,S PayPal isn't too popular. I was browsing their site and found this https://fondy.eu/cms/wordpress. Maybe someone should show it to someone who can make important decisions?

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

A letter was submitted to the LGO on 4 September 2017

Pre-action protocol for judicial review

The LGO was unpersuaded by the representations arguing that the Ombudsman had erred in law in determining that there was insufficient evidence to find the offending Council had acted with fault, and therefore decided against investigating the concerns.

The LGO's legal firm basically backed up the Ombudsman's decision on the basis that North East Lincolnshire Council, which had been shown manifestly to have obtained the Liability Order erroneously, was not at fault for deciding against applying to quash the Order because it was under no legal obligation to. The duty to exercise discretion with good judgement was disregarded.

Also that the case law relied on showed that the courts had consistently recognised the Ombudsman's wide discretion and would only interfere in the clearest cases of unlawfulness (a significantly high threshold to satisfy) which the LGO's lawyer considers has been nowhere near achieved in the representations and so any claim for Judicial Review will be bound to fail.

The punch line however is the threat of costs to deter a claim (para 5.16, LGO's letter of response)

"....should you issue Judicial Review proceedings and should these be unsuccessful at the permission stage or at a substantive hearing, the Ombudsman will seek an order that you pay the costs of the proceedings. Otherwise, the costs of the proceedings would have to be borne from public funds. Typically the cost if the Ombudsman files an Acknowledgment of Service is approximately £2,000. Should the matter go to a substantive hearing then those costs will be considerably higher.

The prospects of success at judicial review are pretty slim. According to an article on the web, judges found in favour of the LGO in all of the 25 cases taken to judicial review over a 4 year period.

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Croydon Borough Council

“Croydon's council tax system has a complex set of rules for cash allocation; for each payment received the system looks to match it to the most relevant debt based on the amount - for example if the payment matches an instalment amount for a payment arrangement for arrears, it will be allocated against that debt. If the amount paid does not match any instalment plan or other rule within the system, the payment will be allocated to the current year’s debt.”

Croydon Council adds on 31 August 2017.....

'Payments are allocated to the current year’s debt, subject to the payment amount not matching an instalment amount on a payment arrangement for arears. The reason for this is to prevent recovery action on the Council Tax payer’s current year’s debt. If the customer does not wish for the payment amount made to be used for the current year’s debt then they have the option to advise us of this and we would allocate the payment to their intended year’s debt.

By allocating payments to the current year’s debt, and thus preventing further [charges] being applied to the account, the Council is acting in a fiduciary capacity.'

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Govermnent
OMBUDSMAN

7 August 2017


Our ref: 17 003 081
(Please quote our reference when contacting us and, if using email, put the number in the email subject line)

If telephoning please contact: 0330 403 4057
email address: R.Draper@coinweb.lgo.org.uk


Dear Mr outlawlgo

Complaint against North East Lincolnshire Council

The Ombudsman has asked me to review Ms Gooch’s decision on your complaint to make sure the evidence supports it.

Ms Gooch has the delegated authority of the Ombudsman to make decisions for him. Those decisions carry the same weight in law as decisions made by the Ombudsman himself. They can only be challenged by judicial review. There is no right of appeal, but we offer one internal review to consider whether the decision has been made properly.

I have reviewed the file and looked carefully at the extra comments you have sent. I recognise this may disappoint you, but I support the decision to close your complaint and I will explain why.

But first, I will say for the record and to avoid doubt I am not the Mr Draper referred to in the court service letter to you dated 6 April 2017, nor do I know of him.

Your new argument is the Council is at fault in not seeking to quash the 2015 liability order because the court service has upheld your complaint about the service you received from the courts in 2012/13. You have also repeated many of your arguments about the court proceedings and the Council’s references to them which are not directly relevant to the Ombudsman’s consideration of your complaint.

The court service complaint response makes it clear it has not dealt (and could not deal) with any judicial decisions. Nor have you said your appeal against the 2012 costs of £60 succeeded. We have seen no evidence which has a causal link between the relevant events to create any reason for the Council to apply to set aside the 2015 liability order. I am satisfied Ms Gooch has properly considered your complaint and I must agree with her reasons for not investigating it.

So, Ms Gooch’s decision will stand.

Our procedures allow for one review of a decision, which I have now done. This completes our internal review and the decision is final.

The only way to challenge the decision further is by seeking a judicial review in the High Court. Please take some advice before considering such action as the Ombudsman must – as a publicly funded body – seek to recover the costs of defending unsuccessful applications.

The case remains closed and we shall not write about or discuss it further because we cannot justify the cost of continuing to communicate with people whose cases we have closed. We shall note any further contact from you, but we shall not acknowledge it or reply unless it clearly contains new information which we decide has a bearing on our decision.

This does not stop you from complaining to us about a new matter in the future.

Yours sincerely


Rob Draper
Assessment Team Leader

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Govermnent
OMBUDSMAN

18 July 2017

Your ref:
Our ref: 17 003 081
(Please quote our reference when contacting us
and, if using email, put the number in the email subject line)

If telephoning please contact: 0330 403 4057
email address: R.Draper@coinweb.lgo.org.uk


Dear Mr outlawlgo

Complaint against North East Lincolnshire Council

Thank you for your email of 12 July (which we received on 13 July). I have noted your request for a review of Jeanette Gooch’s decision of 30 June 2017.

The papers will be passed to Rob Draper, an Assessment Team Leader who has had no prior involvement in the complaint. He will try to respond to your request by Thursday 10 August which is within 20 working days of receipt.

In the meantime, thank you for your patience.

Yours sincerely

Keith Nevols
Assessment Team Coordinator

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Application to the Local Government Ombudsman (LGO) for a review of its Final Decision (30 June 2017) No 17 003 081.

12 July 2017

1. The Council’s Statement of Truth and supporting papers which were identified as 'NELC1' to 'NELC13' provide conclusive evidence that the fault which has led to an inordinate amount of injustice could have been avoided had the council not made the error it made before it took recovery action in the Magistrates’ court.

2. The letter referred to in paragraph 7 the Ombudsman’s final decision (see below) did not give a credible reason for the Council to have believed that the costs were no longer being disputed, thus justifying its decision to lift the suspension of the costs.

‘The Council then saw a letter which Mr X sent to the court in November 2013. The letter said, “...please take this as formal notice that I am withdrawing the judicial review claim”. The Council lifted the hold but did not take any recovery action.’

The Ombudsman evidently referred to the Council’s Witness Statement to assist his decision making. The relevant paragraphs of that Witness Statement (see below) provides overwhelming evidence that the Council had lifted the suspension of the costs on the bases that it believed the withdrawn appeal related to a “review of the costs”.

68. The Council is aware that the defendant has taken matters further with regards to disputing the £60.00 costs incurred from November 2012.

69. Correspondence received from the defendant as of 20th November 2013 stated that he had withdrawn his application for the Judicial review of the costs (NELC12)

70. Given this the Council no longer held action in attempting to recover the outstanding amount.

………..

73. As of the letter from the Defendant regarding his withdrawal of the Judicial review North East Lincolnshire Council had no further reason to believe that the costs were being disputed and the allocation of unspecified amounts was made in accordance with Peters V Anderson.

3. The appeal disputing the costs was a Case Stated appeal, not a judicial review claim which the November 2013 letter referred to. There were two separate High Court matters, which the Council was well aware of; one a Case Stated appeal disputing the costs and the other, a judicial review claim for a mandatory order.

4. The letter, therefore gave no cause to lead the Council to believe that the High Court appeal (case stated) challenging the summons costs had been withdrawn. The judicial review claim, which was a separate matter from the application to state a case for an appeal challenging the costs, was merely the vehicle used to address the difficulties faced by the Magistrates in stating the draft case. The judicial review claim therefore was for a mandatory order, not a 'review of the costs' and so the case stated appeal challenging the summons costs had never been withdrawn.

5. The November 2013 letter was in response to the Administrative Court's recommendation to withdraw the judicial review claim as the process had prompted the Magistrates to produce a draft case in respect of the appeal for which the costs had been suspended (Case Stated appeal) and deemed there no longer a need for further action on their part as the process of stating a case was underway. As far as the parties were aware, the Case Stated appeal was back on track and could theoretically progress to the next stage which was in any event clear from the context of the November 2013 letter. The subsequent letters and emails referred to in my comments on the draft, re Pursuing appeal correspondence, made it categorically clear that the appeal was being pursued if there was any genuine previous misunderstanding by the Council.

6. The Council erroneously lifting the suspension of the costs can not simply be attributed to a misunderstanding arising from the withdrawal of the claim for a mandatory order. The exhibits supporting the Witness Statement provided conclusive evidence that Council’s claim that it had no further reason to believe that the costs were being disputed was dishonest. Exhibit NELC12 (see appended) contained the contents of the 20 November 2013 letter withdrawing the claim for a mandatory order and the Administrative Court's response dated 25 November. The letters were not copies of the original; it can be confirmed beyond reasonable doubt that the contents were obtained from the same source that recorded publicly everything relevant to the matter. The source was a public help forum dealing with council tax issues, the same forum which the Council had sourced the contents of another of its exhibits.

7. The letters contained in exhibit NELC12 had been redacted and matched the entries that were posted on the public forum (see appended screen shots). The forum is the only place from which those letters could be sourced in that redacted form. The characteristics of the letters from which the Council formed its view that the appeal had been withdrawn were identical to the forum posts.

8. The Council had evidently relied on the website to keep abreast of developments as all correspondence connected with the proceedings (albeit redacted) where conveniently in one place. It would therefore have been informed from the regular updates posted that the case stated appeal was still being pursued. Even if the forum was not regularly consulted it is enough that the Council had done on the occasion it learned that the mandatory order had been withdrawn that its claim was dishonest, i,e. that it believed the costs were no longer being disputed. The crux of the matter is that the post from which the content was sourced (see appended screen shots) was accompanied with the commentary, below, which is proof in itself:

“Back almost to square one.

Although the judicial review claim for mandatory order was not entirely successful in mandating the Magistrates' Court to state the case (other than the draft), it would never have been known there was a possibility to negotiate the terms of a recognizance at the hearing. It took this process to prompt a response from the Justices at Grimsby Magistrates' Court.

The next move then will be to arrange to appear before the Magistrates’ Court to agree terms of a recognizance.”

9. The Council’s fault was to misallocate payment to a disputed sum based upon a dishonest claim which has been proved conclusively. Clearly if the Council had not been at fault the court proceedings could have been avoided. Crucially the Ombudsman may remedy distress caused by receiving a wrongly issued summons, regardless of whether the complainant attended court (City of York Council, decision ref: 16 014 507).

Conclusion

10. On one level it is immaterial to my complaint whether dishonesty had been involved or that there may have been a genuine misunderstanding by the Council. The complaint concerned the Council refusing to take the appropriate steps in remedying its mistake which it had undeniably made. The provision enabling magistrates' courts the power to quash liability orders where there is no dispute about the facts has been purposely enacted for these circumstances. However, the Council must make the application, and for refusing to even consider doing so is at fault.

11. On another level the Council’s dishonesty is very relevant because the Ombudsman has expressed that he will not investigate the Council’s decision not to ask the court to quash the 2015 liability order on the basis that there is insufficient evidence of fault by the Council. The review request should have no trouble satisfying the Ombudsman that there is sufficient evidence of fault by the Council.

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Govermnent
OMBUDSMAN

30 June 2017

Complaint reference:
17 003 081

Complaint against:
North East Lincolnshire Council

The Ombudsman’s final decision

Summary: The Ombudsman will not investigate this complaint about a liability order from 2015. This is because there is insufficient evidence of fault by the Council and because the matters have been considered in court.
_________________________________________________

The complaint

1. The complainant, whom I refer to as Mr X, complains that the Council will not apply to the court to quash a liability order from 2015.

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)


How I considered this complaint

4. I read the complaint and documents provided by Mr X. I considered Mr X’s previous complaints to the Ombudsman and comments he made in response to a draft of this decision.


What I found
Previous complaints to the Ombudsman

5. In 2013 and 2016 Mr X complained about court costs, of £60, that he incurred in 2012. The Ombudsman decided not to investigate the complaints because Mr X had started legal action about the court costs. The Ombudsman cannot investigate any complaint about something which has been the subject of legal proceedings.

Council Tax Payments

6. People should pay their council tax as billed. If they do not pay the exact amount which is stated on the bill the system allocates the payment to any debts that may exist. If the person does not keep their council tax payments up to date then the Council can apply to the court for a liability order. A liability order is a court order confirming the person must pay the council tax and the costs.

What happened – current complaint

7. In 2012 Mr X incurred court costs, related to council tax, of £60. Mr X disputed the £60 and started legal action in the High Court. The Council suspended recovery of the £60. The Council then saw a letter which Mr X sent to the court in November 2013. The letter said, “...please take this as formal notice that I am withdrawing the judicial review claim”. The Council lifted the hold but did not take any recovery action.

8. In 2015/16 Mr X was required to make monthly instalments of £91 a month. Mr X made regular payments but he did not pay as billed. The system allocated most of one payment to the £60 debt from 2012.

9. Mr X continued to make payments but he did not pay enough to cover the £60. The Council issued a reminder and a summons asking him to pay £424. Mr X did not do so. There was a liability hearing in 2015. Mr X attended the hearing and raised a defence before a district judge. Mr X argued that he did not have arrears because the Council had allocated the payment to the wrong account/year. Mr X also argued that the Council should not have used the payment for the 2012 debt because it was subject to a court case. The Council told the judge that Mr X had withdrawn the court case and it referred to Mr X’s letter of November 2013. The court granted a liability order in 2015.

10. In 2017 the court service upheld a complaint Mr X had made about the handling of his application to the High Court. Mr X says this proves he did not withdraw the court case in 2013. Mr X asked the Council to apply to the court to cancel the 2015 liability order. He wants the £60 transferred to his account for 2015/16 and the costs from the 2015 court action cancelled. The Council declined to apply to quash the liability order. Mr X complains that the Council will not accept a complaint about its decision not to apply to quash the liability order.

Assessment

11. I cannot investigate any matter linked to the £60 costs from 2012 because Mr X started legal action. I have not seen any document which states Mr X is not liable to pay the 2012 costs.

12. I will not investigate the Council’s decision not to ask the court to quash the 2015 liability order. This is because there is insufficient evidence of fault by the Council. The Council applied for a liability order which the court issued after considering the points raised by Mr X. This included a consideration of how payments are allocated and why the Council lifted the hold on recovery. The court was satisfied the arrears were due and the recent decision from the court service does not affect the issue of liability in 2015.

13. In addition, the summons was for £424. The dispute about the £60 costs does not cover the full amount of the arrears and the judge was not persuaded by Mr X’s argument about the allocation of payments. There is no suggestion of fault in the Council’s decision not to apply to quash the liability order or cancel the costs.

14. Mr X complains that the Council will not investigate his complaint about its decision not to contact the court about the order. However, the Council’s view is that this matter was concluded in court, in 2015, and the matter is closed. I will not investigate this decision because I have not seen any evidence that questions why the Council served a summons in 2015 or suggests that matters were not concluded in 2015. If Mr X thought the court should not have issued the liability order then he could have taken legal action, in 2015, to apply to have it set aside.

Final decision

15. I will not start an investigation because there is insufficient evidence of fault by the Council and because most of the issues have been considered in court.

Investigator’s decision on behalf of the Ombudsman

_________________________________________________

Final Decision

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Govermnent
OMBUDSMAN

30 June 2017

Your ref:
Our ref: 17 003 081
(Please quote our reference when contacting us
and, if using email, put the number in the email subject line)

If telephoning please contact: 0330 403 4682
email address: J.Gooch@coinweb.lgo.org.uk


Dear Mr outlawlgo

Complaint against North East Lincolnshire Council

Thank you for the comments you made in response to my draft decision. I considered what you said and I have made some changes to the decision statement to reflect some of your points. However, I was not persuaded to alter my view.

I have decided not to investigate your complaint. The enclosed statement sets out my decision and explains my reasons for it. I have now closed your complaint.

As required by the law, I have sent a copy of the complaint and the decision to the Council.

We normally destroy our record of your complaint 12 months after the date of our decision, except for the decision letter and statement of reasons which we will destroy after five years.


Yours sincerely

Jeanette Gooch
Investigator

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Government Ombudsman
PO Box 4771
Coventry
CV4 0EH

[Comments on the draft]

Ref: 17 003 081

28 June 2017

Dear Ms Gooch


Complaint against North East Lincolnshire Council

The draft decision does not specifically relate to my present complaint. I was concerned that the specific issues of the present matter would be linked to my previous complaints and therefore be considered outside the Ombudsman’s remit for the same reasons stated by the Ombudsman at those times.

It was because of this concern that I attempted to be clear from the outset that the area to be investigated was an entirely separate issue from what the Ombudsman had previously considered. I stated in my online application of 20 May 2017 the following:

“For the avoidance of doubt, I must stress that the matter of my complaint is entirely isolated from the issues involving the High Court application. The matter primarily concerns the Council refusing to deal with my complaint because if it did investigate the matter properly it would reveal serious maladministration.”

The draft decision does not make any reference to the specific issue of the present matter which is effectively the Council refusing to address my complaint to underhandedly achieve avoiding accountability.

However, the draft decision seems to elaborate on issues which the organisation previously considered to be outside its remit, but evidently done so without considering the representations I made on its original findings. I will therefore separately;

i) further clarify why my present complaint does not concern the High Court application nor the laws surrounding appropriation of payments (thus irrelevance of the draft decision), and

ii) point out any factual errors I have found /consider the draft decision and make representations on the findings.

i) irrelevance of the draft decision to my present complaint

Paragraph 6 of the decision notice has no relevance to my present complaint as it deals with laws surrounding appropriation of payments – specifically the way local authorities attempt to comply with the principles where payments are processed automatically by computer systems.

To ensure that the Ombudsman recognises where my present complaint differs in this area it is essential to understand that the issues have nothing to do with how the council tax processing system is set to allocate unspecified payments (those not exactly matching instalments).

The £60 from 2012 to which payment was allocated had been “suspended until the outcome of the proceedings” and therefore wrongly allocated to that sum. The authority, so it says, made the decision to “no longer [hold] action in attempting to recover the outstanding amount” on the basis that I had withdrawn the appeal disputing the costs.

The council’s criminal actions which I allege have not been set out to be considered here and so are irrelevant to my present complaint. Whether dishonesty was involved is not a factor because what matters is that the council was at fault for refusing to deal with a formal complaint because it is inconceivable how it could have investigated the matter credibly without revealing that its error had caused me gross injustice which it did not want to be held accountable for.

It states erroneously in the draft decision in paragraph 11 that the Council applied for a liability order because I had not paid my council tax. My council tax had been paid, moreover payments to my account were either up to date or in credit at all times at least up until the council instituted recovery through the Magistrates’ court.

It also states in paragraph 11 that had I paid the amount stated on the bill then my payments would have been allocated to 2015/16. This is irrelevant because as aforementioned this particular matter deals with how the council’s system is set to allocate unspecified payments (where there are outstanding balances relating to more than one year/account). Where a council taxpayer has outstanding monies relating only to the current year’s liability, then payment, whether or not the sum matches the instalment amount can only reduce the indebtedness of the council tax account which is current at the time of payment. In other words the possibility is removed of payments being automatically allocated by the council’s computer system to another sum, potentially resulting in unnecessary recovery.

These were the circumstances relating to my account because the sum from a previous year had been suspended until the outcome of the appeal (only the current year’s liability was outstanding). Payment was allocated to the disputed sum only because the council was at fault by no longer holding action in attempting to recover the outstanding amount on the basis that I had withdrawn the appeal.

All that matters as far as my present complaint is concerned is that;

(a) my assertion is true that the £60 court costs, which I dispute, were suspended by the council until the outcome of the proceedings,

(b) the council no longer held action in attempting to recover the outstanding amount on the basis that I had withdrawn the appeal disputing the costs in 2013, and

(c) I had, in fact, never withdrawn the appeal disputing the costs

The first of the above (suspended court costs) can be pretty much verified by a letter of 19 July 2013 sent by the council’s Mrs Richardson-Smith (see attached letter ‘NELC 19 July 2013 suspended costs’).

The council’s Witness Statement (last page paras 68 to 70), verifies that the council no longer held action in attempting to recover the outstanding amount on the basis that it believed I had withdrawn the appeal, and reinforces Mrs Richardson-Smith’s letter that court costs were suspended until the outcome of the proceedings. (see attached ‘NELC last page of Witness Statement’):

68. The Council is aware that the defendant has taken matters further with regards to disputing the £60.00 costs incurred from November 2012.

69. Correspondence received from the defendant as of 20th November 2013 stated that he had withdrawn his application for the Judicial review of the costs (NELC12)

70. Given this the Council no longer held action in attempting to recover the outstanding amount.

The recent decision from the court service which I submitted in support of my online application of 20 May 2017 provides conclusive evidence that I had never withdrawn the appeal disputing the costs.

Although my present complaint focuses solely on the council’s refusal to consider new evidence, which proves conclusively that the liability order was applied for in error, it would perhaps be as well to point out that the council had no credible reason to believe that the appeal had been withdrawn. In fact, the council had been copied in to correspondence after November 2013 which documented the ongoing difficulties I was having progressing the case with HMCTS, which proved beyond all doubt that I had never withdrawn the appeal disputing the costs (see attached document, ‘Pursuing appeal correspondence’). The letters were sent electronically as email attachments dated 10 January, 13 February and 22 April 2014. Details relating to when the emails were sent and to whom etc., reveal that Mrs Richardson-Smith was copied in on all three.

I have produced a case providing far more detail and damning evidence than has been mentioned here regarding the council’s false statement/perjury, however, I don’t propose forwarding it at this time but will do at the request of the Ombudsman if he considers it may assist, perhaps to prove a case of misconduct in public office for example.

As a consequence of what is set out above, paragraphs 10 to 12 of the draft decision are irrelevant as the appropriation of monies was supported by the council on the basis that it believed the appeal had been withdrawn. It is immaterial to this complaint whether the council genuinely believed the appeal had been withdrawn - or - as my evidence supports beyond all doubt it was fully aware it had not. The council’s fault was to bury its head to new evidence, which proves conclusively that the liability order was applied for in error.

The commencement of proceedings before a court of law

Paragraphs 3 and 10 refer to the Ombudsman being restricted by the Local Government Act 1974, Schedule 5, from investigating a complaint if someone has commenced court action about the matter. However, according to the publicly available LGO Guidance on jurisdiction (February 2017) at page 56 the idea is expressed that court proceedings may be the injustice as opposed to the fault, particularly concerning cases where, had no fault occurred, court proceedings could have been avoided. The relevant paragraph is as follows:

“The exclusion of court proceedings from the Ombudsman’s jurisdiction was intended to prevent us considering those matters decided by the courts using different evidential standards, and applying the more restrictive test of legality as opposed to maladministration. But there is no prohibition of an investigation about whether, had fault not occurred, court proceedings could have been avoided. This is because, in such cases the court proceedings are the injustice as opposed to the fault. We have in the past criticised councils for taking bankruptcy proceedings where – even though the application was successful – we did not feel it was a proportionate response to enforcement of a debt, given the prohibitive nature of the costs involved for the person being made bankrupt. We have also found fault with councils obtaining Liability Orders from the courts for unpaid Council Tax where they should not have done so.”

Though it is clear that the Ombudsman is referring to the appeal in 2012 it has been demonstrated that the application to the High Court is irrelevant to the present complaint (the disputed costs had been suspended). However, the Ombudsman may consider Schedule 5 to be applicable as a legislative bar regarding the court proceedings which commenced in 2015, but if the LGO Guidance on jurisdiction was applied to the decision making it would be reasonable to conclude that court proceedings could have been avoided, had fault not occurred.

The Local Government Act 1974, section 26(6), provides another legislative bar in that the Ombudsman shall not conduct an investigation in respect of any action where the person affected has or had a remedy by way of proceedings in any court of law (a subtle difference from having commenced court action). However, it is clear that a clause is provided in sub-section 6 of section 26 which allows the Ombudsman discretion as it states as follows:

“Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or have resorted to it.”

It could be said that I had a remedy by way of appealing the Liability Order that was made against me in 2015 to the High Court, but the far simpler solution would be if the council applied to the Magistrates’ court under the provision of the Local Government Act 2003. This was a remedy enacted purposely to enable magistrates' courts powers to quash liability orders where there is no dispute about the facts, hence the cost involved is unwarranted. In normal circumstances a High Court appeal would be considered unwarranted, but the recent decision from the court service is enough evidence to justify that it would be wholly unreasonable to expect that I resorted to this remedy.


ii) factual errors I have found

Paragraph 7 of the decision notice states that I had a debt of £60 from 2012 but omits to record the very relevant matter that the council had put in writing that the sum was “suspended until the outcome of the proceedings”.

In the same paragraph, clarification is required regarding the sum stated misleadingly as being £85 which I paid in May 2015. I had already paid May’s instalment on 21 April 2015 which was £91; the £85 which was paid on 28 May contributed to June’s instalment and paid out of a different bank account than that which a later payment of £7 was made. The aggregate of the two payments settled the amount due for June’s payment and were made by the due date.

Paragraph 8 omits to say what my complaint aimed to accomplish regarding the suspended costs. Below is quoted from an email of 12 January 2017 to the Council’s Monitoring Officer, Tony Maione, which explains more clearly:

“If the Magistrates' court were to quash the liability order granted on 30 October 2015 then the £60 costs added in September 2015 would have been invalid and require removing from my account. The misallocated payment of £60 would require reallocating to the 2015/16 account and the disputed costs would remain suspended until the High Court appeal had concluded.”

To reiterate what I stated earlier, paragraph 11 incorrectly says that I had not paid my council tax.

Paragraph 12 incorrectly states that the court considered the points I’d raised at the court hearing. The court did not consider my evidence because it was clear that the District Judge was satisfied with an argument contained in the Council’s Witness Statement relying on Devaynes v Noble (1816) 35 ER 781. It was this case which the Council sought authority to support its assertion that unspecified payments are presumed to be appropriated to debts in the order in which the debts are incurred and if no election is made the earliest debts are paid first, and cited the following from the judgment: “it is the first item on the debit side of the account, that is discharged, or reduced, by the first item on the credit side.”

The case, however, concerned how payments were dealt with in relation to a "running Account" (banking account), where all the sums paid in form one blended fund, the parts of which have no longer any distinct existence. This case did not have any relevance to Council Tax whereby the accounts relate to distinct insulated debts, between which a plain line of separation can be drawn.

The following I hope will be of use to the Ombudsman

A more recent case, R v Miskin Lower Justices (1953), held that where an amount so obviously relates to a specific liability, it would be an unwarranted assumption to allocate the payment elsewhere. It could be drawn from this that where an unspecified payment is made it must be carried to that account which it is most beneficial to the debtor to reduce.

The fact that it would be to the taxpayer’s detriment if allocated to the oldest debt is sufficient to infer that the payment is intended to reduce his current year’s liability. The 1953 case law, clearly serves, in these circumstances, to protect the taxpayer from the right of appropriation falling on the Council when its election may be to the taxpayer’s detriment. It can be concluded that billing authorities which have their systems set so non-specified payments are posted by default to the most current debt is because it would be an unwarranted assumption to allocate monies to a sum in arrears if it is likely to also put the current year's liability in arrears.

The council can change its system's settings so that non-specified payments are automatically allocated to the current year's account thus eliminating this element of unwarranted applications to the court. It has been discovered that a number of councils have their council tax processing systems set up this way – or – at least ensure that an unspecified payment is not allocated to the oldest debt if doing so would put the current year's account in arrears in accordance with R v Miskin.

Middlesbrough Council

"The Council Tax administration system uses an automated process to allocate payments received against an individual account. There are a series of checks made by the system, but in summary where a payment that has not been marked as received from an attachment source or enforcement agent fails to match a debt or instalment amount due then the payment would be allocated to the current year debt."


Castle Point Borough Council

"If payments are received that do not match the instalments that are due or as per an arrangement that has been made to cover the current or previous years, the payment will be allocated to the current year first."


Croydon Borough Council

“Croydon's council tax system has a complex set of rules for cash allocation; for each payment received the system looks to match it to the most relevant debt based on the amount - for example if the payment matches an instalment amount for a payment arrangement for arrears, it will be allocated against that debt. If the amount paid does not match any instalment plan or other rule within the system, the payment will be allocated to the current year’s debt.”


Durham County Council

Where there is more than one year of Council Tax debt outstanding, payments are checked to ensure monies are allocated appropriately.

In accordance with internal procedure, firstly accounts are reviewed to determine

• If the customer has indicated where the payment is intended

• Whether the amount is similar or the same as an instalment

• Whether the payment is as a result of the issue of recent documentation

• Whether the payment is from a third party, i.e. a direct deduction (monies will be allocated to the relevant debt)

• Is there any impending action that would result in additional costs or hardship for the customer that could be avoided

Should none of the above apply, consideration will be given to ring-fencing the older debt and allocating payments to the current financial year.


Southwark Borough Council

With effect from 10 October 2016 payments are allocated as follows:

• Payments received that exactly match an instalment are automatically allocated to the year the instalment relates to.

• If the payment amount does not exactly match an instalment the payment is automatically allocated to the most recent financial year.

• If a payment has been received in respect of a particular Liability Order (e.g. subject to an Attachment of Earnings, Attachment of Benefits or a Charging Order) it is manually allocated to the financial year(s) the Liability Order in question related to.

Prior to 10 October 2016, payments that did not exactly match an instalment and were not received to settle a particular Liability Order were allocated to the oldest debt first


Great Yarmouth Borough Council

"Where money is paid to the Council for Council Tax, if the sum paid matches an agreed instalment it is automatically allocated to the year the instalment relates to. Where the sum paid does not match any agreed instalment plan the amount paid is allocated to the current outstanding bill.


Lambeth Borough Council

The council tax regulations are silent as regards payments allocations. Therefore we follow the general principles

• that a payment tendered in an amount which matches an instalment calculated under the regulations, or has been otherwise agreed with the taxpayer in advance of payment, will be allocated against that instalment,

• where the tax payer gives clear instructions at the time of, or shortly after, the payment is made the payment will be allocated in accordance with those instructions,

• in the absence of clear instructions the council will allocate payments to the current year or youngest debt first and arrears after that is clear.


Eastleigh Borough Council

Yes this is correct re, ‘if it is likely that allocating an unmatched payment to the oldest debt would put the current year's liability ALSO in arrears, the payment would be allocated to the current year?’

Note:

It appears to be the Ombudsman’s opinion that he considers the costs should be paid regardless of the High Court having not considered the appeal and consequently there being no outcome. However, more worryingly is the signal being sent out that resorting to perjury to achieve this – requiring a further court summons and costs – is an acceptable approach if it is the actions of a local authority.

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Govermnent
OMBUDSMAN

21 June 2017

Complaint reference:
17 003 081

Complaint against:
North East Lincolnshire Council

The Ombudsman’s draft decision

Summary: The Ombudsman will not investigate this complaint about a liability order from 2015. This is because there is insufficient evidence of fault by the Council.
_________________________________________________

The complaint

1. The complainant, whom I refer to as Mr X, complains that the Council will not apply to the court to quash a liability order from 2015.

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

3. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter.. (Local Government Act 1974, section 26(6), as amended)


How I considered this complaint

4. I read the complaint and documents provided by Mr X. I considered Mr X’s previous complaints to the Ombudsman. I invited Mr X to comment on a draft of this decision.


What I found
Previous complaints to the Ombudsman

5. In 2013 and 2016 Mr X complained about court costs, of £60, that he incurred in 2012. The Ombudsman decided not to investigate the complaints because Mr X had started legal action about the court costs. The Ombudsman cannot investigate any complaint about something which has been the subject of legal proceedings.

Council Tax Payments

6. People should pay their council tax as billed. If they do not pay the exact amount which is stated on the bill the system allocates the payment to any debts that may exist. If the person does not keep their council tax payments up to date then the Council can apply to the court for a liability order. A liability order is a court order confirming the person must pay the council tax and the costs.

What happened – current complaint

7. In 2015/16 Mr X had a debt of £60 from 2012. The debt arose from court costs which he had disputed and started legal action about in the High Court. In 2015/16 Mr X was required to make monthly instalments of £91 a month. In May 2015 he paid £85. The system allocated most of the payment to the £60 debt.

8. Mr X continued to make regular council tax payments but he did not pay enough to cover the £60. The Council issued a reminder and a summons asking him to pay £424 for 2015/16. Mr X did not do so. There was a liability hearing. Mr X attended the hearing and raised a defence before a district judge. Mr X argued that he did not have arrears because the Council had allocated the payment to the wrong account/year. Mr X also argued that the Council should not have used the payment for the 2012 debt because it was subject to a court case. The Council told the judge that Mr X had withdrawn the court case. The court issued the liability order in 2015.

9. In 2017 the court service upheld a complaint Mr X had made about the handling of his application to the High Court. Mr X says this proves he did not withdraw the court case in 2013. Mr X asked the Council to apply to the court to cancel the 2015 liability order. He wants the £60 transferred to his account for 2015/16 and the costs from the 2015 court action cancelled. The Council declined to apply to quash the liability order.

Assessment

10. I cannot investigate any matter linked to the £60 costs from 2012 because Mr X started legal action. I have not seen any document which states Mr X is not liable to pay the 2012 costs.

11. I will not investigate the Council’s decision not to ask the court to quash the 2015 liability order. This is because there is insufficient evidence of fault by the Council. The Council applied for a liability order because Mr X had not paid his council tax. If Mr X had paid the amount stated on the bill then his payments would have been allocated to 2015/16.

12. The Council applied for a liability order, which the court issued, after considering the points raised by Mr X. The court was satisfied the arrears were due. The recent decision from the court service does not affect the issue of liability in 2015. In addition, the summons was for £424. The dispute about the £60 costs does not cover the full amount of the arrears and the judge was not persuaded by Mr X’s argument about the allocation of payments. There is no suggestion of fault in the Council’s decision not to apply to quash the liability order or cancel the costs.

Draft decision

13. I will not start an investigation because there is insufficient evidence of fault by the Council.

Investigator’s draft decision on behalf of the Ombudsman.

_________________________________________________

Draft Decision for your comments

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Govermnent
OMBUDSMAN

21 June 2017

Your ref:
Our ref: 17 003 081
(Please quote our reference when contacting us
and, if using email, put the number in the email subject line)

If telephoning please contact: 0330 403 4682
email address: J.Gooch@coinweb.lgo.org.uk


Dear Mr outlawlgo

Complaint against North East Lincolnshire Council

The Ombudsman has asked me to assess your complaint to see if it is about a matter we can and should investigate. I have also sent a copy of this letter by email. Please check your spam/junk folder if you have not received it.

I am sorry to disappoint you but my current view is that we should not investigate your complaint. The enclosed draft decision explains how and why I have reached this view. Before I make a final decision, I would welcome your comments on what I say in the draft decision. It is helpful if, when commenting, you refer to specific paragraph numbers from the draft decision. If there is any relevant evidence that I have not seen which you wish to send me please do so. Please also take this opportunity to point out any factual errors in the draft decision.

If you do wish to comment on the draft decision, please ensure that I receive your response (in writing or by telephone) by 28 June 2017. If I have heard nothing by then, I will make a final decision not to investigate your complaint for the reasons explained in the draft decision. If you need more time to comment, please explain why this is and I shall consider your request.

..............

You will see that I have referred to you as Mr X. This is because we have a commitment to publish all of our decisions on our website if possible. If you consider that publication of the decision will identify you, please explain why this is and we will consider whether to make an exception to our normal policy.

Yours sincerely

Jeanette Gooch
Investigator

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

Local Government Ombudsman Complaint LGO
(20 May 2017)


What do you think the body did wrong?

An email was sent to the council's Monitoring Officer, Tony Maione, on 12 January 2017. He responded by email on 13 January 2017 informing me that he had authorised the Council’s Deputy Monitoring Officer, Mrs Eve Richardson-Smith, to carry out the relevant functions of the Monitoring Officer and had copied her into the email.

On 26 January 2017 Eve Richardson-Smith replied using the email address which is used for correspondence in 'Formal Complaints' (not her own email). I therefore assumed that the council had dealt with my email as a formal complaint.

The deputy Monitoring Officer in essence refused to deal with the matter so on the same day I escalated the complaint "Stage 2 independent review".

I have quoted below from the email sent on 12 January 2017 to the Monitoring Officer to outline the issues. The full contents of the email is attached to this complaint along with all other relevant correspondence including a letter from HM Courts & Tribunal Service (HMCTS):

I write in reference to my email which was acknowledged by yourself on 5 January 2017 regarding undelivered documents in an application to the High court. I eventually obtained an unsigned copy of a key document on 3 January 2017 (over 3 years after it appears to have been produced), presumably prompted by involvement of my MP and Parliamentary Ombudsman.

The application is a case stated appeal with North East Lincolnshire Council (NELC) named the 'Respondent'. I have written confirmation from the court that by 13 January 2017 I will receive the signed 'case' which I intend lodging with the Administrative Office.

With reference to a Council Tax liability hearing on 30 October 2015 and subsequent complaint (NEL/1172/1516) which escalated to the Local Government Ombudsman, this is yet more evidence that my appeal to the High Court had never been withdrawn and the Magistrates' court granted a court order erroneously.

NELC succeeded in persuading the Magistrates' court that the council correctly allocated monies to a sum which was suspended pending the outcome of my High Court appeal on the basis that I had withdrawn the case and the sum no longer suspended.

Attached is a document containing a number of relevant correspondence arranged chronologically spanning the period of the undelivered letters (since obtained) and positioned in context. This, and information already held by the council should be enough to satisfy the magistrates' court that the liability order should not have been made. It is therefore a reasonable expectation that the council apply in accordance regulation 36A of the Council Tax (Administration and Enforcement) Regulations 1992 to have the order quashed. When the council was previously asked to do this (See ANNEX A) the request was unsuccessful.

For the avoidance of doubt, I must stress that the matter of my complaint is entirely isolated from the issues involving the High Court application. The matter primarily concerns the Council refusing to deal with my complaint because if it did investigate the matter properly it would reveal serious maladministration.

The Council suspended recovery of a sum being appealed in the High Court until the case had been determined (irrelevant except for context). However, it wrongly allocated monies to the disputed sum, leaving the balance of the year’s account that should have been reduced in default. The Council allocated monies to the wrong account attributing that decision to BELIEVING THAT THE SUM WAS NO LONGER DISPUTED BECAUSE THE APPEAL HAD BEEN WITHDRAWN.

The appeal had categorically never been withdrawn. Seeing as though the overriding reason for the alleged default was down to the Council’s claim that the appeal had been withdrawn, the Council has a duty to apply to the Magistrates’ court to have the order quashed.

The council continues to turn a blind eye to the evidence which proves overwhelmingly that the council obtained a Liability Order from the Magistrates' court when it should not have done. This has even continued when new evidence has been provided by HMCTS in a complaint outcome. It is one thing that the council continues denying this when the evidence is produced by myself but quite another when it refuses evidence from HMCTS' investigations.

Under the circumstances, the most reasonable action for the council to take is to investigate the complaint and consider all the new evidence (not bury its head). Once it has been found that my version of events has been true all along it would then be justified in applying to the court to have the liability order quashed.


How has this affected you?

I have been put to an incalculable amount of injustice over a protracted period of time to get to the stage I am now at, i.e., to have obtained evidence from HM Courts & Tribunal Service that I had never withdrawn a High Court Appeal which the Council claimed I had.


What do you think the body should do to put things right?

The council should investigate the complaint and consider all the new evidence (not bury its head). Once it has been found that my version of events has been true all along it would then be justified in applying to the court to have the liability order quashed thus removing the court costs that were added in error.

Evaluate all the hardship that the councils action has unnecessarily cause me and come up with a figure to compensate.

Review its policies regarding its exploitation of the Magistrates' court to obtain liability orders as punishment.

[outlawlgo]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

How much your vexatious complaints are costing taxpayers can only be guessed at.

I cannot believe that there there is yet ANOTHER decision regarding you from the Information Commissioners Office:

https://ico.org.uk/media/action-weve...fs50636604.pdf

Information Rights Tribunal, Appellant’s notice (grounds of appeal) against Decision Notice:

Supporting papers referred to in the Grounds of Appeal:

Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5

[Avalanche]

Re: Misallocating payments and ignoring email to exploit Magistrates court costs

A problem with the administration of your account , no stronger wording than this ever , seriously raises the standard of proof required .
Sorry to hear it turned out this way .
Submit your evidence and let the court decide if criminal charges should be brought themselves .
I hope that comment makes sense